Punjab

StateCommission

FA/244/2014

Oriental Insurance Co. Ltd. & Others - Complainant(s)

Versus

Jagsir Singh & another - Opp.Party(s)

Gunjan Rishi & Tarundeep S. Khaira

15 Jan 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

First Appeal No.244 of 2014                                                      

Date of institution  :   12.03.2014        

Date of decision     :   15.01.2015

 

1. The Managing Director, The Oriental Insurance Co. Ltd., Oriental House, PB No.7037, A-25/27, Asaf Ali Road, New Delhi-110 002.
2. The Chief Regional Manager, The Oriental Insurance Co. Ltd., SCO Nos.109-11, Sector 17/D, Chandigarh.
3. Manager, The Oriental Insurance Co. Ltd., Branch Office, Nabha Gate, Sangrur.

…….Appellants/Opposite Parties Nos.1 to 3

Versus

1. Jagsir Singh s/o Sukhdev Singh, r/o Pakho Ke, Tehsil and District Barnala, Punjab.

…….Respondent/Complainant

2. The Manager, Pakhoke CASS Limited Pakhoke, District Barnala.

……..Performa Respondent/Opposite Party No.4  

First Appeal against the order dated 13.1.2014 of the District Consumer Disputes Redressal Forum, Barnala.  

Quorum:- 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Mrs. Surinder Pal Kaur, Member.

Present:-

          For the appellants       :Shri Gunjan Rishi, Advocate.

          For respondent No.1 :Shri Tushan Deep Garg, Advocate.

          For respondent No.2   : Ex Parte.       

 

JUSTICE GURDEV SINGH,  PRESIDENT :

          This appeal has been preferred by the appellants/opposite parties Nos.1 to 3 against the order dated 13.1.2014 passed by District Consumer Disputes Redressal Forum, Barnala (in short, “District Forum”), vide which the complaint filed by Jagsir Singh, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, “the Act”) was allowed and opposite parties Nos.1 to 3 were directed to pay Rs.1,00,000/-, jointly and severally, to the legal heirs of Sukhdev Singh, along with interest at the rate of 9% from the date of his death and to pay consolidated amount of compensation to the tune of Rs.10,000/-.

2.      The complainant alleged, in his complaint, that he is the son of Sukhdev Singh, who was a Member of the Sangrur Central Cooperative Bank Limited Sangrur and was covered under Insurance Policy No.233502/48/2010/000305, issued by opposite parties Nos.1 to 3, which was for the period 1.10.2009 to 30.9.2010.  Sukhdev Singh had also become a Member of the Fort Pakhoke CASS Society Limited, Pakhoke and the passbook of the bank was duly issued to him.   On 28.8.2010 he had gone to the fields to bring the green fodder, where he was bitten by a snake/poisonous snake like reptile and was taken to Civil Hospital, Barnala, where the Doctors declared him “brought dead”.  The post mortem examination on his dead body was performed on 28.8.2010 and the matter was reported to the police and DDR No.9 was recorded in Police Post Pakho Kanchian.  As Sukhdev Singh died unnatural death, so he (complainant), as his son, lodged a claim with opposite parties Nos.1 to 3 with a request to release the amount payable under the insurance policy, along with interest.  Those opposite parties repudiated his claim by saying that Sukhdev Singh consumed insecticides and died as a result thereof.  The claim was repudiated on the basis of the false and mala fide report submitted to those opposite parties and which had been dictated by them to the alleged Investigator, J.S. Walia.  This repudiation of his claim is arbitrary, false, mala fide and in total violation of the terms and conditions of the insurance policy.  The death of Sukhdev Singh was accidental and, as such, he was entitled to the amount payable under the insurance policy.  In fact, opposite parties Nos.1 to 3 remained sitting over the matter for one year and it was only after he sought information under the RTI Act that he came to know that his claim was repudiated on the basis of the investigating report and that it was repudiated on the ground that it was a case of suicide.   Thereafter, he served a legal notice dated 27.11.2012 upon the opposite parties but they failed to give any reply to that notice.  The act of the opposite parties in repudiating his claim in arbitrary manner amounts to deficiency in service and the same caused mental tension, agony, physical harassment and financial loss to him.  He prayed for the issuance of following directions to the opposite parties:-

          i)        to pay Rs.1,00,000/-, as insured sum;

          ii)       to pay Rs.2,000/-, as counsel fee for sending the notice;

3. to pay Rs.1,00,000/-, on account of mental tension, agony and physical harassment suffered by him;
4. to pay Rs.20,000/-, as compensatory costs; and
5. to pay interest at the rate of 12.5% per annum.

3.      The complaint was contested by the opposite parties.  Opposite parties Nos.1 to 3 filed joint written reply, in which they admitted that Sukhdev Singh was Member of Kisan Credit Card Holders of Sangrur District Co-operative Societies and was insured with them for the period mentioned in the complaint, vide Policy detailed in the complaint.  They also admitted that after his death the complainant made a claim under the Policy and the same was repudiated.  While denying the other allegations made in the complaint, they pleaded that as per the post mortem report, there was no injury of any kind on the dead body of Sukhdev Singh and as per the report of Chemical Examiner, he had died as a result of poison of chloro-compound group and, as such, he committed suicide.  The story of snake bite has been enacted by the complainant to bring the case out of the exclusion clause of the Policy.  J.S. Walia was appointed to investigate the cause of death and to check the veracity of the claim made by the complainant.  It was only after that investigation that the claim was repudiated by them.   The complainant has no cause of action nor any locus-standi to file the complaint and the District Forum has no jurisdiction to entertain and try the same.  The complainant has not come to the District Forum with clean hands and has concealed the true facts.  The complaint is misconceived, concocted, afterthought and has been filed with mala fide intention.  They prayed for the dismissal thereof under Section 26 of the Act.

4.      Opposite party No.4 in its written reply while disputing the allegations made in the complaint pleaded that no service was ever provided by it to the complainant and it never insured his father Sukhdev Singh.  It was only deducting Rs.5/- per Member of the Society and remitting that amount to the Sangrur Central Co-operative Bank, Pakho Ke and thereafter it was the Bank, who was preparing all the documents and depositing Rs.50/- with the Insurance Company.  All the papers regarding the insurance were with the Bank, who has not been impleaded as a party and in the absence thereof, the complaint is not maintainable.  The District Forum has no territorial jurisdiction to entertain the same.  No cause of action has arisen to the complainant nor he has any locus standi to file the complaint and the same is hopelessly barred by time.  The complaint is wholly misconceived, groundless, unsustainable in law, flagrant abuse of the process of law and has been filed to harass and blackmail it.  It prayed for the dismissal of the complaint under Section 26 of the Act; being false and frivolous.

5.      The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.

6.      We have heard learned counsel for the appellants/opposite parties Nos.1 to 3 and learned counsel for the respondent/complainant as opposite party No.4 did not appear in spite of his service and was proceeded against ex parte.  We have carefully gone through the records of the case.

7.      It has been submitted by the learned counsel for opposite parties Nos.1 to 3 that the District Forum totally misdirected itself by assuming that the onus of proving that Sukhdev Singh, deceased, had not died accidental death was upon the opposite parties.  The onus of proving that fact was upon the complainant and he failed to discharge that onus.  From the report of the Chemical Examiner, Ex.C-13, it stands proved that the cause of death of the deceased was the consuming of chloro compound group of insecticides and the same cannot be said to be the result of snake bite.  In fact, the District Forum based its order on surmises and conjectures by holding that there is no evidence on the record that from where he purchased this kind of poison and consumed it and that the repudiation of the claim of the complainant could not have been made on the fake Chemical Examiner’s report.  That report was relied upon by the complainant himself and clear finding is given therein.  The District Forum also came to the conclusion that there was no final opinion of the Doctor regarding the cause of death and that fact was taken favourable to the complainant.  In fact, the complainant was to suffer if he had not proved on record the final opinion of the Doctor regarding the cause of death.  It is very much clear from the evidence produced on the record that Sukhdev Singh committed suicide by consuming chloro compound group of insecticides and never died as a result of snake bite.  As per the terms and conditions of the insurance policy, the risk covered therein was in respect of the death due to accident caused by outward, violent and visible means.  By invoking that exclusion clause, the claim of the complainant was validly repudiated.  In these circumstances, the findings recorded by the District Forum cannot be sustained and are liable to be set aside.  He prayed that the appeal be accepted; the order of the District Forum be set aside; and the complaint filed by the complainant be dismissed.

8.      On the other hand, it has been submitted by the learned counsel for the complainant that after thoroughly discussing the evidence produced on the record and looking into all the aspects of the case, correct findings were recorded by the District Forum and there is no ground for upsetting those well reasoned findings.  There is no merit in the appeal and the same is liable to be dismissed.

9.      The complainant had made his claim to opposite parties Nos.1 to 3 under the insurance policy and for the proper adjudication of the dispute between the parties he was required to prove on record that insurance policy but he failed to do so.  Even opposite parties Nos.1 to 3 did not prove on record that insurance policy and the terms and conditions thereof before the District Forum.  However, in this appeal they moved an application for producing that insurance policy by way of additional evidence.  The same was allowed and thereafter the insurance policy and the terms and conditions thereof were taken on the record of the appeal.

10.    Admittedly, Sukhdev Singh, was covered under this policy, which had been issued to Kisan Credit Card Holders and he was one amongst them.  Condition No.3 of the Policy relates to the “risk coverage”.   The benefit under this Scheme was in respect of the death due to accident caused by outward, violent and visible means.  The complainant came out with the version that Sukhdev Singh died as a result of snake bite.  The death as a result of snake bite can be said to be accidental.  The question, which has arisen for our consideration is, whether the death of Sukhdev Singh was the result of the snake bite or otherwise?

11.    For proving that fact, the complainant proved on record his affidavit Ex.C-1, affidavit of Manjit Kaur Ex.C-2, DDR No.9 of 28.8.2010 Ex.C-5, post mortem report Ex.C-9 and the report of the Chemical Examiner Ex.C-13.  He deposed in his affidavit that on 28.8.2010 Sukhdev Singh had gone to the fields for bringing green fodder, where he was bitten by a snake or any other snake like poisonous insect and was brought to the Civil Hospital, Barnala, where he was declared “brought dead” by the Doctors.  Similar deposition was made by Manjit Kaur in her affidavit Ex.C-2.   The same facts were incorporated in the report Ex.C-5. 

12.    However, this evidence of the complainant stands falsified by the other evidence produced by him.  The post mortem report Ex.C-9 totally contradicts that evidence.  It becomes very much clear from that report that the Doctor had not found any bite of the snake or other poisonous insect on the dead body nor any such fact is incorporated in the post mortem report, on the basis of which it may be said that the deceased was bitten by some poisonous snake or insect.  The cause of death was not given by the Doctor and he deferred the same till the receipt of the report of the Chemical Examiner and the histopathological report of the Professor and Head of Department of Pathology Department, GMC, Patiala. The report of the Chemical Examiner Ex.C-13 also falsifies the story put forward by the complainant that the death of Sukhdev Singh was as a result of the bite by some poisonous snake or insect.  In the viscera so sent to the Chemical Examiner, chlorocompound group of insecticides was detected and no poison was detected.   Had the death been result of some snake bite or bite by some poisonous insect, the Chemical Examiner must have found the poison in the viscera.  The absence thereof totally rules out the cause of the death of the deceased as a result of snake bite.  The way in which the report of the Chemical Examination has been discarded by the District Forum is most deplorable.  The presence of chlorocompound group of insecticides makes it very much clear that this insecticide was consumed by the deceased.  In the absence of any evidence or literature on the subject, the District Forum was not justified in making observation that a specific quantity of a specific poison is required to cause a death of a person in ordinary circumstances.  It has been correctly submitted by the learned counsel for opposite parties Nos.1 to 3 that the District Forum on the basis of surmises and conjectures made observations in the order that there is nothing on the record from where the deceased purchased that kind of poison and consumed it.  It wrongly shifted the onus of proving the death being accidental from the complainant to opposite parties Nos.1 to 3, while recording findings in favour of the complainant.  It was for the complainant to prove that the death of the deceased was accidental i.e. as a result of snake bite but he miserably failed to discharge that onus.  The post mortem report and the report of the Chemical Examiner are the best piece of evidence for determining the cause of death and that evidence is to be preferred as compared to the oral evidence produced by the complainant.   From the post mortem report and the report of the Chemical Examiner, we have no hesitation in concluding that the death of the deceased took place on account of the consuming of chlorocompound group of insecticides.  Thus, it cannot be said to be accidental.  The opposite parties-Insurance Company correctly repudiated the claim made by the complainant by invoking the above said exclusion clause of the Policy.

13.    In the result, the appeal is allowed.  The order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed.                             

14.    The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellants/opposite parties Nos.1 to 3 by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.

15.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                                                                                                (JUSTICE GURDEV SINGH)

                                                                                                                                                            PRESIDENT

                                                                                                                                                (MRS. SURINDER PAL KAUR)

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